Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 14, 2021
CASE NO(S).: PL210208
PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended
Applicant and Appellant: Artlife Developments
Subject: Application to amend Cliffcrest Community Zoning By-law 9396- Refusal of Application by the City of Toronto
Existing Zoning: Highway Commercial (HC) Zone
Proposed Zoning: Apartment
Purpose: To permit a 10-storey mixed-use building.
Property Address/Description: 2872, 2880 and 2882 Kingston Road
Municipality: City of Toronto
Municipality File No.: 18 255259 ESC 36 OZ
OLT Lead Case No.: PL210208
OLT Case No.: PL210208
OLT Case Name: Artlife Developments v. Toronto (City)
Heard: September 7, 2021 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
City of Toronto (“City”)
S. Amini M. Mahoney
Artlife Developments Inc. (“Applicant/Appellant”)
I. Tang L. English
Cliffcrest Scarborough Village SW Residents Association (“CSVSW”)
T. Kasanda*
Janet Sumner
Self-Represented
MEMORANDUM OF ORAL DECISION DELIVERED BY M. RUSSO ON SEPTEMBER 7, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Applicant/Appellant and owner of lands municipally known as 2872, 2880 and 2882 Kingston Road (the “Subject Lands”) submitted an application to amend the City's Zoning By-law (the “ZBL”) No. 569-2013 and Cliffcrest Community ZBL No. 9396, which was filed on November 12, 2018 and deemed complete on February 13, 2019.
2The site is zoned Commercial Residential (CR) Zone in City’s ZBL No. 569-2013, as amended. Permitted uses in the (CR) Zone include uses such as a dwelling unit, retail store, office and personal service shop. The lands are subject to Exception No. 504 in the by-law which contains a number of prescriptive performance standards relating to setbacks and permits a place of worship use. The ZBL permits 0.4 times commercial density and no residential density permissions. A maximum building height of 11 metres is permitted.
3The site is zoned Highway Commercial (HC) Zone in the Cliffcrest Community ZBL No. 9396, as amended. Permitted uses in the HC Zone include hotels and motels, professional and business offices, automobile sales and service and maintenance uses excluding auto body repair and/or auto wrecking yards and day nurseries. The by-law contains a number of prescriptive performance standards relating to setbacks. The lands are subject to Exception No. 21 which contain regulations applying to garages associated with residences.
4The ZBL Amendment (the “ZBLA”) Application was made to facilitate the future· construction of a 10-storey mixed use building, comprised of 145 dwelling units, 295 square metres of ground floor commercial space and 118 vehicular parking spaces on three levels of underground parking, representing a density of 4.99 times the lot area.
5After various public meetings and consultations, the Applicant/Appellant made three resubmissions to the City in August 2019, March 2020 and final resubmission in October 2020. The revisions encompassed input provided by the public, City staff and consultants.
6City Planning Division and staff recommended refusal of the ZBLA which Scarborough Community Council chose to adopt and deny the application at its February 26, 2021 meeting and Council upheld the decision at its March 10, 2021 Council meeting.
7The Applicant/Appellant appealed the decision of City Council to the Tribunal pursuant to s. 34(11) of the Planning Act.
THE CASE MANAGEMENT CONFERENCE (the “CMC”)
8The Tribunal held this first CMC in accordance with s. 15 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4. The Tribunal noted Counsel for the Applicant/Appellant had provided the Affidavit of Service by registered mail dated August 4, 2021 to all names and addresses on the mailing list provided. The Tribunal marked the Affidavit of Service as Exhibit 1.
9Mr. Kasanda, President and representative for CSVSW, an incorporated not-for-profit local residents’ association, had made a written request to the Tribunal and was present seeking to be included as a Party for these proceedings. Hearing no objections by Counsel for the Applicant/Appellant or the City, the Tribunal was satisfied that CSVSW met the criteria to be included as a Party and granted them status for these proceedings.
10The Member did ask that Mr. Kasanda to provide the Tribunal’s Case Coordinator with CSVSW minutes, from the organization, verifying Mr. Kasanda’s ability to speak on their behalf. The Member also asked Mr. Kasanda to verify in a timely manner, if CSVSW intended on remaining self represented or was retaining Counsel. CSVSW was directed to engage in discussions with the other Parties and in particular with the City and identify and scope any issues. Discussions at the CMC did lend themselves to the possibility of CSVSW withdrawing as a Party and working in conjunction with the City as both their interests may be in line with one another and to avoid duplication.
11Ms. Sumner, the abutting neighbour to the Subject Lands also had provided a written request seeking Party status for these proceedings. She had indicated that for some reason she was not provided notice of this CMC and therefore had heard of the CMC late and at this time was self-representing, however, may be attaining Counsel and did intend on calling witnesses for the hearing if heard.
12Counsel for the Applicant/Appellant apologized for the exclusion of Ms. Sumner’s notice, however, they did highlight that for some reason her name was not provided by the City and on the mailing list. Nevertheless, Counsel did not object to Ms. Sumner being provided status, nor did the other Parties. The Tribunal being satisfied that Ms. Sumner met the criteria required to be provided Party status, granted her status for these proceedings.
13The Member did advise Ms. Sumner to reach out to the other Parties in a timely fashion and discuss the issues. Priorities also being the confirmation of retaining Counsel or not and/or remaining Party or possible withdrawal were all briefly discussed. The Tribunal, similarly to discussions with CSVSW, did advise Ms. Sumner to engage in discussions with the Parties and explore if again her interests are inline with other Parties and the avoidance of any duplication.
14Ms. Janet May had provided the Tribunal a written Participant request form and was present seeking such status. Hearing no objections by the Parties and the Tribunal being satisfied that Ms. May met the criteria to be provided Participant status, granted the request and she was provided Participant status.
15The Member canvassed the virtual hearing room if anyone else present was seeking participant or party status for these proceedings. With none being present and no written requests provided to the Tribunal, the Parties for these proceedings were established.
ISSUES LIST, DRAFT PROCEDURAL ORDER AND HEARING
16A Draft Procedural Order (“DPO”) was provided to the Tribunal in advance of the CMC with dates to be inserted and other details to be provided pending a hearing date being set.
17The Parties were agreeable to the DPO provided in principle, however, the Issues List provided as Attachment 3 was formulated by the Applicant/Appellant’s Counsel without input of the other Parties.
18Jointly the Parties preferred to have the hearing date set to adequately provide dates for their final submission of the DPO. However, the Parties were not agreeable at this time as to the number of days the hearing of the merits if heard may require. Mr. Tang for the Applicant/Appellant was optimistic and through ongoing discussions with the other Parties as well as anticipated witnesses to be called, believed that a five-day hearing would be required to hear the merits of this matter.
19Ms. Amini for the City was not so optimistic. Although not entirely averse to Mr. Tang’s proposal, Ms. Amini thought it was premature to limit the number of days for the hearing and with the introduction of additional Parties, thought 10 days allocated to the hearing would be more realistic. Her position was that this allowed the Parties the ability to scope and narrow issues, thus possibly removing days versus having to stand down and add additional days in the event five days was not enough.
20The remaining Parties were more inclined to agree with Ms. Amini, however, they acknowledged their witnesses may be limited and/or shared by those provided by the City.
MEDIATION
21The Tribunal asked the Parties if mediation had been explored or settlement discussions had occurred.
22The Parties indicated they have had positive and amicable discussions thus far, however, they agreed at this time with the newer Parties included, mediation was not likely, although not entirely discarded with ongoing discussions. The Tribunal reminded the Parties of Tribunal-led mediation and further reminded the Parties to share any progress and changes, if and when they may occur, with the Tribunal’s Case Coordinator.
CONCLUSION
23Having considered the discussion during the CMC regarding the issues, potential mediation and finalizing the DPO, the Tribunal has determined that it would be reasonable to schedule the hearing for eight days.
24With the inclusion of additional Parties, the Tribunal has provided the Parties until October 1, 2021 to revise and finalize the DPO and submit to the Tribunal for final approval.
ORDER
25The Tribunal orders a hearing by video scheduled to commence at 10 a.m. on Tuesday, June 28, 2022 for eight (8) days, as follows:
https://global.gotomeeting.com/join/182583749
Access Code: 182 583 749
26Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections.
27Parties and participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
28Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (Toll Free): 1 888 299 1889 or +1 (647) 497-9373. The Access Code is as indicated above.
29Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
30By Friday, October 1, 2021, the Parties shall provide, on or before that date, a joint DPO and Issues List to the assigned Case Coordinator for final review and approval of the Member, highlighting any items that may require the Tribunal’s assistance to finalize.
31The Parties shall provide at least 10 days’ notice to the Tribunal prior to the hearing date in the event if fewer hearing dates are agreed upon by the Parties or if settlement has been entered into by the Parties. If settlement is reached and has been entered into by the Parties, the Member may be spoken to and an expedited one-day hearing may be considered if the Tribunal’s calendar allows.
32If any issues arise, the Member may be spoken to, if required, through correspondence received through the Case Coordinator.
33The Member is not seized for the purposes of the hearing of the appeal.
34No further notice of the hearing is required.
“M. Russo”
M. RUSSO
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.